Brown v. Brown , 82 Tenn. 253 ( 1884 )

Cooper, J.,

delivered the opinion of the court.

Benjamin Brown died in 1857. An instrument in writing, purporting to be his will, was duly proved as such in common form by the persons named as executors therein, who qualified accordingly. The estate was settled by the executors, and the property turned over to - the persons named as devisees and legatees after the payment of debts. The settlement was completed by the year 1860. In 1869,, upon petition of parties interested, an issue was made to contest the validity of the will upon the ground that the deceased was induced to execute it by the undue influence of bis wife. Upon the trial the jury found that the execution was procured by the undue influence of the wife, and a judgment was rendered that the instrument was not the last will and testament of the deceased. The judgment was affirmed by this court in 1873. Shortly afterwards R. S.'Brown was appointed administrator of'the decedent’s estate. Thereupon he and some of the' heirs and distributees of the deceased filed this bill against the other heirs and distributees, and the persons made devisees and legatees, under the supposed will, to recover the property, real and personal, received by the latter under the will. These parties plead and rely on the' statute of limitations in bar of the action. The chancellor rendered a decree from which no appeal was taken. Two of the heirs and distributees have brought the case up by writ of error.

The heirs of the deceased, notwithstanding the probate of the will in common form, might have sued at law for the land, and in that suit contested the validity of the will: Weatherhead v. Sewell, 9 Hum., 280; Smith v. Neilson, 13 Lea, 461. Having the right to sue, and having failed to do so for more than seven years, during which time the defendants were in the continuous adverse possession of the land, the right of action would' ordinarily be barred, and the title of the claimants be vested in the defendants: Code, sec. 2763.

Part of the realty was devised to the widow of the deceased for life with remainder in fee to other defendants. The contention is, as to that property, that the possession of the tenant for life would only inure to her benefit, not to the benefit of the re-maindermen. But they all claim under the same instrument, which undertakes to convey the entire fee in the land, and the devise is an assurance of title purporting to convey' an estate in fee within the- mean-' ing of the Code, sec. 2763. The interests of the tenant for life and in remainder constitute one estate, the two, when added together, being equal to an estate in fee. “They are indeed different parts, but they constitute only one whole”: 2 Black. Com., 164. The possession under the section of the Code cited need not be by the owner of the fee in person. It may be by a tenant for life, for years, or at will: Craddock v. Stalcup, 1 Tenn., 351; Ross v. Cobb, 9 Yer., 463. Or by an overseer or agent: Jones v. Perry, 10 Yer., 59, 81; Hammett v. Blount, 1 Swan, 385; Waddle v. Stuart, 4 Sneed, 535. And by successive tenants: Sims v. Eastland, 3 Head, 368. The possession of several successive privies in estate is good: Marr v. Gilliam, 1 Cold., 489. And the possession of one tenant in common will inure in favor of other tenants in common not in possession: Hubbard v. Wood, 1 Sneed, 279. .A life tenant is a privy in estate with the remaindermen in fee, and represents the latter for all purposes touching the common estate: Freeman v. Freeman, 9 Heis., 301; Parker v. Peters, 3 Leg. .Rep., 12. His possession is necessarily the possession of those having the other interests carved out of the fee by the assurance of title under which he holds. And so this court has said: “ that where a legacy is limited to several persons in succession, the executor’s assent to the first taker will be considered an assent to those who are to succeed in remainder, because the several interests constitute but one ' entire estate: Finch v. Rogers, 11 Hum., 559, 564. If .the law were otherwise, in the very common conveyance of land to a mother for life, and then to her children, the possession of the mother would only inure to her benefit, although her children might be living with her, for her possession would, of course, be exclusive during her life: Since the foregoing argument was written, the position contended for has been expressly held by the Supreme Court of Maryland in Hanson v. Johnson, 31 Alb. Law. J., 91.

The ease of Stevens v. Bomar, 9 Hum., 546, is not in conflict with this view. There the conveyance of the negroes was to a daughter of W. T. Richardson, “ and her heirs forever,” in trust for her mother, the wife of Richardson, during her life, and then to go to the trustee and such other children the mother might bear. The conveyance was executed in North Carolina, and was, by a statute of that State, void for want of registration. The court was of opinion that the trusts of the deed were £ts absolutely void as if created by a parol gift, and said that the possession of the slaves by the father, if held in conformity with the deed, might vest, not a title in the mother, the life tenant, but “ the absolute title”* in the trustee. “ It cannot be said,” the court add: “that the possession of a party actually holding a slave is the possession of another person in remainder in whom no estate in remainder has been created.” The-decision turns upon the fact that the court treated the trusts as void, and fairly implies that if the remainder had been valid the possession might have inured to its benefit.

A remainderman is not bound by a judgment in ejectment against the tenant for life, neither is the owner of land by a judgment against his tenant, and for the same reason the possession and title or interest' of the defendant being alone involved.

The time of the bar of the recovery of personal property is three years, and of a money demand six years. These periods having elapsed before suit brought in the present case, the statute of - limitations would prima facie be a good -defense. The ground relied on to prevent the bar of the statute is, that there was no person to bring suit until the administrator was appointed after the will was set aside, and that the statute would not begin to run until there was a person capable of suing. -The point is one of difficulty, on which there is a singular dearth of authority, although all which have been found, including one ease of our own, are against the defense. The probate of a will of personalty, it seems to be now well settled, is conclusive, if the court had jurisdiction as to its testamentary character, the capacity of the testator, and as to all questions of fraud,, imposition, and undue influence, until set aside in the mode prescribed by law. Williams, ex parte, 1 Lea, 529; Code, secs. 2169, 2173; Williams, executors, 490; Jarman on Wills, 27 (Big. ed.); Clark v. Fisher, 1 Paige, 176; 3 Red. on Wills, 57, 120. Like the adjudication of every other court of competent jurisdiction, the judgment would protect the purchasers of property under it, notwithstanding a subsequent reversal, unless the title can be impeached for fraud. The executor acting under it in good faith would be protected. It would seem to be equally clear that legatees under the will would acquire a good title at the time upon the assent of the executor to the legacy. The title would, of course, be under the will valid by virtue of the probate, and therefore not void, but voidable. The possession would be adverse to the personal representative of the deceased who, at the time, had the right to the property, and who by virtue of that right had turned it over to the legatee. Such a possession continued for the length of time necessary to perfect the voidable title, with a personal representative of the estate then in existence, would, according to all the analogies of the law, be a bar to any subsequent representative. It was so expressly ruled by this court in Rogers v. Winton, 2 Hum., 178, a case in principle identical with the one before us. It was decided by one of our ablest judges. “If,” he says, “the statute of limitations is a bar, it operated before the issue of devisavit vel non was found against the will, and rights acquired cannot be divested by subsequent matter.” The will was set aside, but a good title had already been acquired under it. If a person hold land for seven years under a fraudulent deed, would it be pretended that his title would be affected by a subsequent decree setting aside tbe deed for fraud? And bow can an administrator impeach a title forfeited under a previous personal representative whose appointment and acts were legal ? The cases of Price v. Nesbit, 1 Hill Ch., 445, and Anderson v. Stewart, 15 Texas, 285, tend to sustain our own ease.

The effect of so holding will be to limit the time within which an issue of devisavit ml non could be brought with any expectation of benefit. But there should be, and is in most of the States, a short limitation for the bringing of such an action. No harm is done by decisions which bring about the same result. And if the issue be made within the period •of limitation for the recovery of the property, the law’s delay in that suit would not be allowed to prejudice the parties upon a bill filed promptly to prevent that result.

Decree affirmed.